Labor and Employment Law Commons^™

Comment: Ensuring Wages For California Restaurant Workers: Utilizing The Self-Help Prejudgment Wage Lien Tool, Rebekah Didlake

Golden Gate University Law Review

Wage theft runs especially rampant in California’s restaurant industry and these workers are highly susceptible to worthless wage judgments. Some estimates found restaurant workers account for up to 10% of wage claims filed with the Labor Commissioner each year.

Although wage theft is a nationwide epidemic crossing various industries, this Comment explores the wage theft crisis in the context of low-wage restaurant workers and the obstacles they face when recovering unpaid wages. This Comment argues that a self-help prejudgment wage lien tool is an ideal solution to ensure restaurant workers can collect unpaid wages.

Dent V. Nfl Lmra 301 Preemption – The Ninth Circuit Court Of Appeals Throws A Penalty Flag On The Nfl, Justin C. Trimachi

Golden Gate University Law Review

Part I of this Note will discuss the procedural history of the case, the Ninth Circuit’s application of the two-pronged test to determine if LMRA 301 preempted the players’ state-law claims, the facts of Dent v. NFL, and finally a brief history of the NFL and its usage of CBAs. Part II will give a brief overview of the Supreme Court’s development of LMRA 301 jurisprudence as well as its rulings on when LMRA 301 should preempt state-law tort claims. Part III will discuss the decisions by the Eighth Circuit in Williams and by the Eleventh Circuit in Atwater. Part …

Rittmann V. Amazon.Com, Inc.: Ninth Circuit Rules Amazon’S Drivers Fall Within The Federal Arbitration Act’S “Transportation Worker Exemption”, Isabella Borges

Golden Gate University Law Review

Amazon is among a large list of corporations that have long tried to enforce mandatory arbitration against delivery drivers who file suit in their respective jurisdictions. In recent years, delivery drivers have decided to fight back against private arbitration and to have their legal battles heard in court. In these cases, delivery drivers argue that they are exempt from arbitration under the Federal Arbitration Act (“FAA”) because they are engaged in interstate commerce. Section 1 of the FAA exempts from arbitration “contracts of employment of seaman, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” …

The Dynamex Dichotomy And The Path Forward, Leticia Chavez

Golden Gate University Law Review

The gig economy is a collection of markets that connects consumers with on-demand service providers (“gig workers”), and it has revolutionized the way in which consumers seek and receive services, such as transportation and household tasks. The ease of calling an Uber or Lyft, as opposed to hailing a cab, led to a decrease in arrests for driving under the influence in major cities. Similarly, it transformed the way in which many workers seek and perform work, as many gig workers enjoy flexibility and control over their work schedule. Gig workers can work for multiple platforms and also have authority …

Perez V. City Of Roseville: Constitutional Protection For The Public Employee In Matters Pertaining To Sex, Allyson M. Mccain

Golden Gate University Law Review

Section I of this Note summarizes both of the Ninth Circuit’s opinions in the Perez matter. Section II analyzes the need to prevent the government employer from intruding on its employees’ personal autonomy rights. Section III discusses why the court’s second opinion is problematic. Section IV demonstrates why the Ninth Circuit’s first opinion is an appropriate application of the law considering the facts of the case. Section V argues that the test furthered by the first Perez decision should be used as a standard going forward. Finally, Section VI illustrates how competing decisions in other circuits would have been decided …

Rizo V. Yovino: Another Step Toward Equality Through The Equal Pay Act, Corey Timpson

Golden Gate University Law Review

Still prevalent in today’s society is a vast inequality between men and women, such that men are oftentimes treated better than women in the same contexts. One realm of society where this inequality is evidenced is through the disparities in pay rates. On average, for each dollar a man earns, a woman earns only 80.5 cents. Despite the passage of the Equal Pay Act (“EPA”), the nearly 20% gap remains. The purpose of the EPA was to bridge the pay gap among men and women working similar jobs at the same workplace. Under the EPA, an employer cannot pay men …

Independent Contractor Or Employee: I’M Uber Confused! Why California Should Create An Exception For Uber Drivers And The “On-Demand Economy”, Andre Andoyan

Golden Gate University Law Review

Part I of this comment details California employment law, how it has been applied to Uber, and how Uber, along with other “On-Demand Economy” companies, are different than other companies. Part II presents the current legal issues in worker classification. Part II also proposes the exception that should apply to Uber drivers and discusses why Uber, and other “On-Demand Economy” companies, should be entitled to this exception, including the practical problems with an employment classification for Uber. Part III concludes that changing our worker-classification laws is a compromise that will benefit drivers, Uber, and reflect the changes in our society.

Ninth Circuit Rules Against Scientology Ministers' Forced-Labor Claims In Headley V. Church Of Scientology International, Jeffrey W. Tye

Golden Gate University Law Review

In Headley v. Church of Scientology International, the Ninth Circuit faced a particularly sensitive question involving the limits of the TVPA and the application of the ministerial exception. In Headley, former ministers brought TVPA forced-labor claims against the Church of Scientology (the “Church”). The Church argued before the district court that the plaintiffs’ labor was not forced, and that the ministerial exception applied to effectively bar the plaintiffs’ claims. The district court agreed, holding that the instances of physical abuse alleged did not raise a triable issue of fact as to the Headleys’ forced-labor claims. The court also …

California's Campaign For Paid Family Leave: A Model For Passing Federal Paid Leave, Caroline Cohen

Golden Gate University Law Review

Part I of this Comment will provide a background of the stated purposes of the FMLA, the California Family Rights Act (CFRA) and California’s Paid Family Leave (PFL), and the benefits each law provides. Part II will discuss the federal income replacement bills of 2009 that need to be reintroduced and enacted to fulfill the FMLA’s intent. Part III will explain why wage replacement is needed at the federal level so that more workers are financially able to access the FMLA’s protections. Part IV will trace the legislative development of the FMLA and PFL to predict the likely challenges that …

Giving Employers Guidance: The Proper Response To No-Match Letters Under Aramark Facility Services V. Service Employees International Union, Local 1877, Steffanie Bevington

Golden Gate University Law Review

In Aramark Facility Services v. Service Employees International Union, Local 1877, the United States Court of Appeals for the Ninth Circuit provided some guidance to employers in receipt of a no-match letter. Finding that receipt of a no-match letter does not give an employer "constructive knowledge" that an employee is unauthorized to work in the United States, the Ninth Circuit upheld an arbitration award reinstating employees who were terminated after their employer received a no-match letter. The Ninth Circuit held that termination of the employees was unwarranted under the circumstances because the company did not have sufficient information that it …

The Extension Of Privacy Rights To Workplace Text Messages Under Quon V. Arch Wireless, Heather Wolnick

Golden Gate University Law Review

In Quon v. Arch Wireless Operating Co., a panel of the United States Court of Appeals for the Ninth Circuit held that a public employer violated the Fourth Amendment by searching the contents of text messages sent and received on a public employee's work-issued pager. In so holding, the Ninth Circuit found that the public employee had a reasonable expectation of privacy in the contents of the text messages, despite a formal Internet and computer policy stating otherwise. Relying on the two-part O'Connor test for public-employer searches, the court found that the search was more intrusive than necessary to determine …

When Does Discrimination "Occur?": The Supreme Court's Limitation On An Employee's Ability To Challenge Discriminatory Pay Under Title Vii, Kara M. Farina

Golden Gate University Law Review

This Comment contends that the Court's holding in Ledbetter marks a substantial deviation from the purpose of Title VII - to rectify past and prevent future workplace discrimination and provide a remedy for economically injured employees-and thereby weakens the prohibition against discrimination in the workplace. The Court's failure to consider the hidden nature of discriminatory pay claims significantly limits employees' ability to challenge disparate pay under Title VII. This comment asserts that discrimination "occurs" with each paycheck that delivers discriminatorily low pay.

Why Fight Fought?: A Missed Erisa Opportunity In The Ninth Circuit, Jill V. Cartwright

Golden Gate University Law Review

This Note analyzes the United States Court of Appeals for the Ninth Circuit's standard of review in cases in which a conflicted administrator has denied benefits. Part I of this Note examines early standards of review prior to ERISA. Part II sets forth the split among the circuits in evaluating a conflicted administrator's denial of benefits and explains the Ninth Circuit's former standard. Part ill compares the Ninth Circuit's prior standard of finding such denials presumptively void with its recent holding in Abatie v. Alta Health & Life Insurance Company, in which the court effectively adopted a unique standard similar …

Making-Up Conditions Of Employment: The Unequal Burdens Test As A Flawed Mode Of Analysis In Jespersen V. Harrah's Operating Co., Megan Kelly

Golden Gate University Law Review

Part I of this Note reviews Title VII and foundational caselaw, including cases regarding sex discrimination and appearance standards. Part II examines the Ninth Circuit's Jespersen opinion. Part III compares the Supreme Court decision in Price Waterhouse v. Hopkins, which expanded Title VII protection to include gender stereotyping, with the Jespersen holding. Part III also explores a Seventh Circuit case, Carroll v. Talman Federal Savings and Loan Association of Chicago, and Judge Thomas's dissent in Jespersen, which both argue for inclusion of less tangible factors such as gender stereotyping in the unequal burdens test. Part III finally contends that the …

To Be Or Not To Be A Penalty: Defining The Recovery Under California's Meal And Rest Period Provisions, Scott Edward Cole, Matthew R. Bainer

Golden Gate University Law Review

This article argues that the DLSE's proposed regulations are in fact a redefinition of the pay provided for under Section 226.7. California Labor Code Section 226.7 was intended to, was explicitly drafted to, and in fact does, provide for a premium wage rather than a penalty. Parts I and II provide a review of mandatory meal and rest periods. Part III discusses the nature of the Section 226.7 pay provision, the DLSE's proposed regulations, and the DLSE's accompanying statement of reasons supporting these regulations. Parts IV analyzes Labor Code Section 226.7 under the axioms of statutory interpretation, demonstrating that the …

Customizing The Reasonable-Woman Standard To Fit Emotionally And Financially Disabled Plaintiffs Is Outside The Scope Of The Civil Rights Act's Prohibition On Sex-Based Discrimination: Holly D. V. California Institute Of Technology, Amanda M. Jarratt

Golden Gate University Law Review

Tailoring the reasonable-woman standard to include select disabilities is problematic because employer liability would improperly depend upon the effect that the victim's disability had on the victim's perception, instead of on the agency relationship between the supervisor and the employer. Furthermore, these subjective standards would prevent employers from successfully invoking the reasonable care defense. Using these tailored standards would also result in discriminatory treatment under the law for women who did not qualify for one of these customized standards. Finally, customized standards would sterilize American workplaces. In support of this Comment's assertions against factoring the emotional and financial difficulties of …

Toward A Future Of Enforcement: A Critique Of The Ninth Circuit's Invalidation Of Mandatory Arbitration Agreements In Employment Contracts, Kerri Bandics

Golden Gate University Law Review

This Comment focuses on mandatory pre-dispute arbitration agreements that prospective employees must sign in order to be hired, or even considered, for a given position. Growing numbers of employers are implementing mandatory arbitration programs to resolve workplace disputes in response to recent case law upholding the enforceability of arbitration agreements. Employers may present arbitration agreements in employment contracts, employment handbooks, or in job applications. This Comment posits that while arbitration is an efficient method of adjudicating many claims, mandatory arbitration agreements in employment contracts are potentially unfair to employees for three reasons. These three concerns arise because employers typically control …

Expert Testimony And "Subtle Discrimination" In The Workplace: Do We Now Need A Weatherman To Know Which Way The Wind Blows?, Deborah Dyson

Golden Gate University Law Review

This Comment studies Elsayed in order to investigate these questions. The Background discussion traces the two great lines of cases whose trajectories cross in Elsayed, the Daubert v. Merrell Dow expert testimony jurisprudence under the Federal Rules of Evidence and the McDonnell Douglas v. Green line of cases establishing the "pretext" model of proof for individual employment discrimination claims under Title VII of the 1964 Civil Rights Act. Then, turning to the opinion proper, the Analysis considers Elsayed under the following headings: (A) The Crux: The Court's Harmless-Error Determination, (B) Decoding in the Pretext Context, (C) Substituting the Mixed-Motives Regime …

Employee Benefits - Friedrich V. Intel Corp., Cynthia O'Brien

Golden Gate University Law Review

In Friedrich v. Intel Corporation, the United States Court of Appeals for the Ninth Circuit upheld the district court's holding that Intel, by denying an employee's claim for long term disability benefits, failed to comply with the Employee Retirement Income Security Act of 1974 ("ERISA"). In applying a two-part test to determine whether Intel acted in apparent conflict with its obligations as a fiduciary to its employee, the Ninth Circuit held that the district court properly reviewed the claim for long term disability benefits de novo and did not err in finding that the employee was entitled to benefits under …

Employment Discrimination - Gotthardt V. National Railroad Passenger Corp, Jennifer T. Dewitt

Golden Gate University Law Review

In Gotthardt v. National Railroad Passenger Corp. the United States Court of Appeals for the Ninth Circuit held that front pay awards in Title VII cases are not subject to the compensatory damages caps stated in 42 U.S.C. § 1981a (b)(3). This was an issue of first impression in the Ninth Circuit. Other circuits had decided the issue and were split. The Ninth Circuit joined the majority of the federal circuits in holding that front pay awards are not subject to the section 1981a caps.

Undocumented Workers Are Entitled To Vote In Union Elections - But Are They "Employees" Under The Law?, Beth Wolf Mora

Golden Gate University Law Review

This note discusses the facts and procedural history of Kolkka. Part III provides a detailed legal and historical analysis of the applicable statutes, case law, and debates surrounding undocumented workers rights. Part IV describes the Ninth Circuit's analysis in Kolkka. Part V critiques the Ninth Circuit's holding in Kolkka asserting that undocumented workers have the right to vote in union elections. Finally, Part VI concludes that judicial decisions supporting undocumented workers rights as an "employees," outweighs the political opposition to rights for undocumented workers. Therefore, to protect undocumented workers, statutory language should expressly state that they are "employees."

Employment Law - Norman-Bloodsaw V. Lawrence Berkeley Laboratory, Cristina E. Echevarria

Golden Gate University Law Review

In Norman-Bloodsaw v. Lawrence Berkeley Laboratory, the United States Court of Appeals for the Ninth Circuit held that employers who conduct nonconsensual medical testing may be liable for invasion of privacy under the United States and California Constitutions. In addition, the court held that Title VII of the Civil Rights Act of 1964 (Title VII) protects employees from nonconsensual medical testing that has a disparate impact on a protected group. The Ninth Circuit held, however, that the American's with Disabilities Act of 1990 (ADA), does not limit the scope of the employee testing when the tests are administered after a …

Employment Law - Johnson V. State Of Oregon, Beryl Slavov

Golden Gate University Law Review

The Americans with Disabilities Act of 1990 (ADA) requires employers to provide reasonable accommodations to its disabled employees to enable them to perform the essential functions of their position} In Johnson v. State of Oregon, the United States Court of Appeals for the Ninth Circuit determined the circumstances in which the doctrine of judicial estoppel could bar a claim under the ADA when the litigant has sought or received disability benefits. Because this was an issue of first impression, the court relied upon Federal Guidelines and case law from other circuits to conclude that the pursuit or receipt of disability …

Employment Law - Duffield V. Robertson Stephens & Co., Kate S. Langer

Golden Gate University Law Review

In Duffield v. Robertson Stephens & Company, the United States Court of Appeals for the Ninth Circuit held that the Civil Rights Act of 1991 prohibited an employer from requiring, as a condition of employment, that prospective or current employees agree in advance to arbitrate Title VII claims arising out of the employment relationship. Relying on the purposes and legislative history of the 1991 Act, the Ninth Circuit became the only circuit to find that the Act barred these mandatory arbitration agreements.

Defining Employer Liability: Toward A Precise Application Of Agency Principles In Title Vii Sexual Harassment Cases, Jennifer T. Dewitt

Golden Gate University Law Review

This note discusses applicable principles and law in sexual harassment cases, including Title VII, Equal Employment Opportunity Commission Guidelines, agency principles, and case law that illustrate two primary approaches taken by the courts in determining the standard for employer liability. This section also discusses relevant portions of the first Supreme Court case to address sexual harassment under Title VII. Section III discusses the facts that gave rise to EIlerth's sexual harassment claims. Section IV discusses the procedural history of Ellerth's case, including the district court's decision, the decision of the Seventh Circuit panel that heard Ellerth's appeal and the en …

Eastern Men, Western Women: Coping With The Effects Of Japanese Culture In The United States Workplace, Becky Kukuk

Golden Gate University Law Review

This article examines the kaigaitenkinsha's effects on women employees in the U.S. workplace and recommends solutions to mitigate their potentially discriminatory impact. Part II, Section A, surveys the kinds of sex discrimination that women encountered at Japanese companies aside from those alleged at Mitsubishi. Section B reviews U.S. equal employment opportunity laws to provide a framework from which to understand U.S. women's employment rights and to compare the Japanese employment laws outlined in the next section. Section C seeks to explain why the kaigaitenkinsha discriminate against women by reviewing the history of women's employment in Japan and Japan's equal employment …

Considering Hybrid Sex And Age Discrimination Claims By Women: Examining Approaches To Pleading And Analysis - A Pragmatic Model, Sabina F. Crocette

Golden Gate University Law Review

This Comment examines two ways in which the legal system does not adequately consider older women's claims of discrimination. The issues are presented in two conceptual groupings. The first grouping discusses how barriers to the recognition of hybrid age and sex discrimination claims are created when courts do not analyze the evidence of discrimination together as evidence of discrimination against "older women." Often, courts analyze hybrid claims of age and sex discrimination separately under Title VII and the ADEA, even when the evidence of discrimination points to a hybrid claim involving discrimination directed at a subset of a protected group, …

Radtke V. Everett: An Analysis Of The Michigan Supreme Court's Rejection Of The Reasonable Woman/Victim Standard: Treating Perspectives That Are Different As Though They Were Exactly Alike, Paul P. Dumont

Golden Gate University Law Review

This comment will discuss both the history of sexual harassment and the evolution of the reasonable woman standard in order to illustrate society's progress toward defining appropriate conduct in the work environment. Parts III- IV will present the Radtke court's argument rejecting the reasonable woman standard in favor of the reasonable person standard. Part V invokes feminist theory to critique the premises upon which the Radtke rationale is based.

Employer Discrimination On The Basis Of Pregnancy: Righting The Power Imbalance, Victoria R. Riede

Golden Gate University Law Review

First, this comment will examine the problems with the position-elimination defense as illustrated by Smith v. F. W. Morse & Co. Since some reorganization is necessary when an employee takes leave, allowing an employer to offer this reorganization effort as evidence of non-discriminatory intent creates a gap in Title VII protections. Next, the author will compare existing American federal family leave laws and European leave laws. The comment will then use California's landlord-tenant law as a prototype for proposing an amendment to existing maternity leave law that remedies the power distribution between dominant and subordinate individuals in a legal relationship.

Turner V. Anheuser-Busch, Inc.: California Supreme Court Provides Employers With A More Favorable Constructive Discharge Standard, Joseph A. Meckes

Golden Gate University Law Review

In Turner v. Anheuser Busch, Inc. the California Supreme Court held that James Turner's claim for constructive wrongful discharge in violation of public policy failed as a matter of law. The court held Turner could not show either objectively intolerable aggravated conditions on the job or that his employer violated public policy. Because Turner did not state a cognizable claim, the court reinstated the trial court's grant of summary judgment in favor of Turner's employer AnheuserBusch, Incorporated (hereinafter "ABI"). In reaching this conclusion, the court significantly modified the constructive discharge test by no longer allowing a plaintiff to use the …